Citation Nr: 21064546 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-41 600 DATE: October 20, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a skin condition variously diagnosed as pseudofolliculitis barbae, folliculitis, and furunculosis (hereinafter, a "skin disability") is denied. REMANDED Entitlement to service connection for chronic fatigue syndrome (CFS) is remanded. FINDING OF FACT The evidence of record indicates that the Veteran's skin disability is manifested by one characteristic of disfigurement. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for a skin disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.118, Diagnostic Code (DC) 7899-7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 through February 1992 and from September 1995 through December 1995. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claim in April 2019 for further development by the RO. Specifically, the RO was to provide the Veteran with an examination for his skin condition that addressed his face as well as other areas of his body. He underwent a VA skin examination in July 2020. The examiner specifically noted that in addition to the Veteran's face, his skin condition was present on the anterior neck and groin areas. The examination is adequate because it is based on a review of the claims file, the Veteran's reports of his symptoms, and a physical examination of the Veteran's skin condition. The examination report describes the Veteran's skin condition in detail sufficient to allow the Board to make a fully informed determination. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating in excess of 10 percent for a skin disability A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's skin disability is rated under DCs 7899-7800, which pertains to an unlisted disability that will be rated as if it were a burn scar, scar, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118; see also 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning diagnostic criteria to unlisted disabilities, including the use of hyphenated ratings). Under DC 7800, a 10 percent rating is warranted for one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Note (1) indicates that the 8 characteristics of disfigurement are: scar, 5 or more inches (13 or more cm.) in length; scar, at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.), skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.), underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). The Veteran underwent an initial VA examination in May 2015. The examiner noted a diagnosis of pseudofolliculitis barbae. The Veteran reported bumps upon shaving. The examiner noted that the skin condition did not cause scarring or disfigurement of the head, face or neck. The only treatment noted for this condition was constant use of a topical lotion medication, namely, sulfacetamide/sulfur, over the past 12 months. The examiner noted that for pseudofolliculitis barbae, less than 5 percent of the total body/exposed area was involved. The appearance was noted as pigmented skin with raised bumps on the neck. The April 2019 Board remand directed the RO to obtain a new VA examination as the May 2015 VA examination did not address the Veteran's other affected body parts, to include his legs and groin. The Board acknowledges that the May 2015 VA examination does not address all affected body parts; nonetheless, the Board finds that the May 2015 VA examination has probative value insofar as it describes the symptoms affecting the Veteran's head and/or neck. Pursuant to the Board remand directives, the Veteran underwent a second VA examination in July 2020. The examiner noted diagnoses of pseudofolliculitis barbae and furunculosis on his groin. The Veteran reported that the condition had improved. Current symptoms were noted as dark painful pustular formations. No treatment, medications or surgery were noted. No medication was used to treat the condition within the past 12 months. The examiner noted that the Veteran's skin disability did not cause disfigurement of the head, face or neck. Rather, the pseudofolliculitis barbae involved less than 5 percent of the total body area and exposed area. Furunculosis involved less than 5 percent of the total body area and none of the exposed area. More specifically, the combined percentage involving the total body was 3 percent and involving the exposed areas was 1 percent. The examiner noted that the conditions manifested as dark bumps on the jaws, anterior neck and groin. The examiner also noted flare-ups of moderate severity occurring once to twice a month and lasting 5 to 7 days. During flare-ups, no additional symptoms were noted; however, the armpits were sometimes affected. The examiner also noted no functional loss or impairment. Turning to the other medical evidence of record, a January 2015 VA treatment record noted that since the last visit in July 2014 the Veteran's facial condition was about the same, although some papules were getting smaller. His thigh condition had improved. A dark firm bump on his forehead was present. An examination of the hands and head, to include the scalp and neck, was conducted. Findings included a mid-forehead, hyperpigmented round smooth firm papule with no fluctuance or central pores or crust; and multiple hyperpigmented fine papules centered around hair follicles in his beard with some scarring. A February 2015 VA treatment record noted that a benign forehead cyst was removed. At a May 2015 VA treatment appointment, the Veteran reported that the pseudofolliculitis barbae was stable. He also reported an abscess near his anus and a nodule that had ruptured recently. Examination findings noted multiple hyperpigmented fine papules centered around hair follicles in his beard with some scarring; there was also a firm, non-fluctuant papule near the anal verge without purulence. A possible intertrigo presence was also noted. An August 2015 VA treatment record noted a follow-up visit for pseudofolliculitis barbae and folliculitis of the inner thighs. It was recommended that he try topical ketoconazole (antifungal) cream then clindamycin (antibiotic) swabs; this was reported as being effective. A small bump on his thighs was noted to have resolved. He reported that his facial symptoms were well-controlled on the current regimen. He used tretinoin cream daily, BPO cleanser daily, sodium/sulfacetamide daily, and niacinamide. He reported some skin tags of the underarms that were not bothering him. Examination findings included facial beard distribution with few scattered hyperpigmented firm papules, about 2 mm, as well as several scattered fine "ice pick" atrophic scars; the occipital scalp was without evidence of folliculitis. Other findings included well-controlled facial pseudofolliculitis barbae, where most findings were likely scars from prior flares; the Veteran declined an examination of the folliculitis of the inner thigh as he reported that this was clear and well controlled with topical clindamycin swabs. A benign skin tag on the right axilla was also noted. An April 2016 VA treatment record noted that the Veteran reported a groin folliculitis flare-up manifesting as tender red bumps that had since resolved; a new dark bump on the right thigh was asymptomatic. Examination findings included a hyperpigmented papule and hyperpigmented macules of the thighs as well as hyperpigmented papules on the chin; there were no active pustules of folliculitis and the pseudofolliculitis barbae was well controlled. A March 2017 VA treatment record noted that the condition was tolerable overall with the current medications; however, he reported that when he ran out approximately one month prior the folliculitis noticeably worsened. He also reported a large bump in the groin area with an associated fever. It ruptured on its own and improved. The pseudofolliculitis was under control with the current regimen. Examination findings included scattered hyperpigmented/erythematous perifollicular papules and macules in bilateral inner thighs, and a rare papule in the beard area. Another March 2017 VA treatment record noted increasing the niacinamide dosage and the dermatologist stated that he suspected that the Veteran's recurrent groin/thigh nodules/abscesses ("folliculitis") actually represented early-stage hidradenitis suppurativa. An April 2017 VA treatment record notes that the Veteran requested a refill of ketoconazole cream and benzoyl peroxide topical wash as a cyst was emerging in his groin area. Correspondence dated August 2017 from a VA dermatologist shows that the Veteran was diagnosed with facial pseudofolliculitis barbae and folliculitis or furunculosis on his groin and thighs. A September 2017 VA treatment record noted pseudofolliculitis barbae and recurrent folliculitis and furunculosis. He reported occasional flares of the face and groin but that both had improved. He used a ketoconazole cream, benzoyl peroxide wash, niacinamide, clindamycin swabs and sodium sulfacetamide/sulfur lotion to treat the condition. Examination findings included several 2-3 mm hyperpigmented follicular papules over the beard areas, inferiorly; numerous pitted, "ice pick" scars over the beard areas; rare 3 mm erythematous, follicular papules over the medial thighs; and many areas of post-inflammatory hyperpigmentation around hair follicles over medial thighs, proximally. A February 2018 VA treatment record noted that the Veteran reported some flares of tender bumps on the thighs and groin and that his gray beard hair was coarse and irritating. Examination findings included several 2-3 mm hyperpigmented follicular papules over the beard areas, inferiorly; numerous pitted, "ice pick" scars over the beard areas; rare 3 mm erythematous, follicular papules over the medial thighs, with no intact pustules or furuncles present at the time; and many areas of post-inflammatory hyperpigmentation around hair follicles over the medial thighs, proximally. Legal analysis On review of the record, the Board finds that the evidence weighs against a rating in excess of the currently assigned 10 percent rating. The May 2015 and July 2020 VA examiners noted the absence of any scars or disfigurement of the head, face, or neck. While some of the VA treatment records cited above noted the presence of scarring, no clinician noted the presence of any additional characteristic of disfigurement such that would warrant the next higher 30 percent rating. Moreover, no examiner or treating clinician noted the presence of visible or palpable tissue loss or gross distortion or asymmetry. Therefore, the evidence shows that a rating of 10 percent, but no higher, is warranted. The Board has considered whether the Veteran is entitled to a higher disability rating under alternative diagnostic codes. The Veteran's scars are not associated with underlying soft tissue damage or cover an area or areas of 144 square inches or greater or are unstable or painful or produce other disabling effects. Therefore, DCs 7801 through 7805, are not applicable. Additionally, the Board considered the application of the General Rating Formula for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, which became effective August 13, 2018. The May 2015 and July 2020 VA examiners found that the Veteran's skin disability involved less than five percent of the Veteran's total body area; this was the case even in July 2020 when the Veteran's legs and groin were considered. Moreover, the VA examination reports and treatment records show topical rather than systemic therapy was used to treat the Veteran's skin disability. The Board acknowledges that use of oral niacinamide was noted in VA treatment records. This is a systemic medication. However, none of the VA examiners noted that this was used for a total duration of 6 weeks or more over the past 12-month period. The other evidence of record does not show that it was used for that amount of time. Given this, and the percentage of the Veteran's body affected, the preponderance of the evidence does not indicate that the Veteran's skin disability manifests by characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas affected, nor requires systemic therapy for a total duration of 6 weeks or more, but not constantly, over the past 12-month period such that would warrant the next higher 30 percent rating under the General Rating Formula for the Skin. The Board acknowledges the Veteran's contention that his skin disability warrants a 30 percent rating as he uses creams to relieve his symptoms from his pseudofolliculitis barbae. See August 2017 VA Form 9. The Board notes that a higher rating may not be denied on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The Board also acknowledges the March 2017 VA treatment note indicating a worsening of symptoms during a pause in medication usage. However, both the pre-amendment criteria and the General Rating Formula for the Skin expressly contemplate the use of medication. As discussed above, the Veteran's use of topical creams does not warrant the next higher 30 percent rating. Furthermore, there is no indication in the record that without medication the Veteran's skin disability would manifest by additional characteristics of disfigurement or visible or palpable tissue loss and gross distortion or asymmetry such that would warrant the next higher 30 percent rating under DC 7800. Prior to August 13, 2018, "systemic" therapy was not defined. Under the amendment that became effective August 13, 2018, for the purpose of evaluating skin conditions, systemic therapy is treatment administered through any route (orally, injection, suppository, intranasally) other than the skin. 38 C.F.R. § 4.118(a). Topical therapy is treatment that is administered through the skin. Id. Under the older criteria, systemic therapy was generally not inclusive of topical medications. "Systemic therapy" means "treatment pertaining to or affecting the body as a whole," whereas "topical therapy" meant treatment pertaining to a particular surface area. Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). Prior to August 13, 2018, when topical medication is used, it must be determined whether it operates by affecting the body as a whole in treating the skin condition. Burton v. Wilkie, 30 Vet. App. 286, 292 (2018). The medical and lay evidence of record does not show that the Veteran's topical medications operated by impacting his body as a whole, and they were only applied to the areas impacted by his skin condition. The medical and lay evidence does not show that the topical medications produced side effects that impact any area of the Veteran's body other than the area to which they were applied. Additionally, VA examiners determined that the Veteran's skin condition affects impacts less than 5 percent of his total body area. He only applied his topical medication to the affected areas, which are a small portion of his entire body and not sufficient for the medication to constitute systemic therapy. The Board has also considered whether the presence of papules or pustules, as noted in VA treatment records, would warrant a rating as acne under DC 7828. However, no VA examination report or treatment record noted the presence of deep inflamed nodules and pus-filled cysts such that would warrant a separate rating under DC 7828. Further, the Board notes that the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; award of a separate rating under the general rating formula for the skin in addition to the existing rating under DC 7899-7800 would violate the rule against pyramiding as the disabilities are not distinct, but rather, the symptomatology under evaluation is entirely duplicative. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board also notes that the July 2020 VA examiner and a VA treatment record noted the presence of flare-ups or skin tags of the armpits; the Veteran is not service connected for this condition and the August 2017 correspondence from the VA dermatologist did not include the armpits as part of the Veteran's service-connected pseudofolliculitis barbae, folliculitis, or furunculosis. Thus, the Board finds that a higher rating under another diagnostic code is not warranted. The Board has also considered the amendments to the Schedule for Rating Skin Disabilities as of August 2018. Specifically, 38 C.F.R. § 4.118, DCs 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829, were amended. The new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118. The Board has considered the application of the prior version of the regulations in assessing whether the Veteran is entitled to a higher disability rating under an alternative diagnostic code for the applicable period on appeal. The Board finds that the Veteran would not be entitled to a higher rating under the prior version because DCs 7801 to 7805, as well as DC 7828, are not for application and given the percentage of his body affected by the condition, as set out above. In assessing the severity of the Veteran's skin disability, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). However, the criteria needed to support higher ratings requires medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating for the Veteran's skin disability at any point pertinent to this appeal. In sum, the Board finds that a disability rating in excess of the currently assigned 10 percent is not warranted for the Veteran's skin disability. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular consideration The present appeal includes the matter of whether a higher evaluation on an extraschedular basis is warranted. See July 2017 statement of the case (SOC). An extraschedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization render the application of the regular schedular standards impracticable. 38 C.F.R. § 3.321(b)(1). Ordinarily, there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Turning to the first step of the extraschedular analysis, the Veteran has not argued, and the record does not otherwise show, that the Veteran's symptoms result in any symptoms other than scarring or lesions on the head and groin/leg area due to diagnoses of pseudofolliculitis barbae, folliculitis, and furunculosis. The Veteran is not entitled to additional separate disability ratings where the symptoms for the conditions in question overlap or are duplicative. See 38 C.F.R. §§ 4.14 (prohibiting evaluation of the same manifestation under various diagnoses). In conclusion, the Board finds that the available schedular evaluation is adequate to fully compensate the Veteran. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19. Therefore, remand for referral for extraschedular consideration is not warranted. REASONS FOR REMAND Entitlement to service connection for CFS is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. Specifically, a remand is warranted in order to obtain an addendum medical opinion regarding the nature and etiology of the Veteran's chronic fatigue. The April 2019 Board remand directives instructed the RO to obtain a new VA examination to determine whether the Veteran has a current diagnosis of CFS or whether he has an undiagnosed illness manifested by fatigue. This was not done. The July 2020 VA medical opinion indicates that the Veteran does not have a current diagnosis of CFS but does not address whether the Veteran may have an undiagnosed illness manifested by fatigue. The Board errs when it fails to ensure substantial compliance with a Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the Board fails to ensure substantial compliance, remand is appropriate. Id. The July 2020 VA examination report indicates, in response to a question about whether other clinical conditions that may produce similar symptoms been excluded to the extent possible, that the Veteran has not been evaluated for fibromyalgia. This implies that the Veteran's symptoms may be attributable to fibromyalgia. The record shows that in December 2008, the Veteran was evaluated for fibromyalgia, which was not found. A claim for service connection for fibromyalgia was denied in a February 2009 rating decision. The record also shows that the Veteran reported during the May 2015 VA examination that he was diagnosed with fibromyalgia in the 2000s. An August 2017 VA treatment record shows that a clinician noted a query about a fibromyalgia diagnosis. As such, the record is unclear as to whether the Veteran's reported symptoms may be attributable to fibromyalgia. Upon remand, the addendum medical opinion should also address this matter. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion from an appropriate medical professional to determine the nature and etiology of the Veteran's chronic fatigue. After reviewing the claims folder in its entirety, the examiner should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's chronic fatigue is a manifestation of: (i) an undiagnosed illness; or (ii) a medically unexplained chronic multi-symptom illness, to include CFS or fibromyalgia? If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.